As a parent, we put our children in the hands of others as they go to daycare, preschool, school or even child care. In the event of sexual abuse, the law imposes serious and significant punishment. Florida law also provides the victim of sexual abuse with the rights to bring a civil action against the perpetrator and, if applicable, his or her employer. Florid law will, in most cases, hold the employer of the perpetrator vicariously liable for the wrongs of its employee. Vicarious liability is a form of a strict, secondary liability that arises under the common law doctrine of agency, also referred to as “respondeat superior”. Simply put, the employer is responsible for the acts of its subordinates. It is also well recognized in Florida that a daycare, preschool, or school owes your child a fiduciary duty. A fiduciary duty is a legal duty to act solely in another person’s interests.
An example would be a lawsuit against a day care for abuse suffered by a child and at the hands of an employee (i.e. a teacher, volunteer, etc.). Of course, the day care employee would be personally liable, but, often is the case, the employee has very little assets or no insurance to cover his wrongful acts against the victim child. Thus, it is important to examine the liability of the employer, who, hopefully, has assets or insurance benefits to cover the damages sustained by the victim child. As stated above, employers are liable for the negligence of their employees, as long as the negligence of the employee was within the course and scope of his or her employment. It is often argued that sexual abuse is outside the scope and course of the perpetrator’s employment. Thus, it is important to investigate what actions can be brought against the employer for their own negligent acts or failure to act (omissions). If the daycare fails to properly supervise your child, procedures and protocols are not followed, or an employee is not well vetted (i.e. detailed back ground checks, criminal history, etc.), the day care would be liable for the actions of the employee / perpetrator.
While almost all tort claims have a statute of limitations, the legislature and courts have recognized that victims in these cases should be afforded special exception in certain instances. Florida Statutes 95.11 which governs statutes of limitations gives some exceptions when it comes to sexual abuse and intentional torts.
(7) FOR INTENTIONAL TORTS BASED ON ABUSE.-An action founded on alleged abuse, as defined in s. 39.01, s. 415.102, or s. 984.03, or incest, as defined in s. 826.04, may be commenced at any time within 7 years after the age of majority, or within 4 years after the injured person leaves the dependency of the abuser, or within 4 years from the time of discovery by the injured party of both the injury and the causal relationship between the injury and the abuse, whichever occurs later. Claims pertaining to an act that violates F.S. 794.011 involving sexual battery of a victim under the age of 16 may be commenced at any time. This provision applies only to acts occurring on or before July 1, 2010 that otherwise would have been time-barred.
(9) SEXUAL BATTERY OFFENSES ON VICTIMS UNDER AGE 16.-An action related to an act constituting a violation of s. 794.011 involving a victim who was under the age of 16 at the time of the act may be commenced at any time. This subsection applies to any such action other than one which would have been time barred on or before July 1, 2010.
Why did Florida legislatures give sexual abuse victims leniency? It is proven that many victims of sexual trauma may repress those memories – only to realize them years later – or they may be in fear of their abuser. While this may leave the possibility for cases to be filed where causes of actions occurred many years of in the past, it is NOT an absolute.
Florida’s Third District Court of Appeal recently visited the statute of limitations pertaining to employers of sexual abusers in the case of Firestone v. Temple Beth Shalom. In Firestone, the plaintiff made the allegation she was sexually abused while she was a minor by a teacher employed by the Temple Beth Shalom. According to the plaintiff, this abuse occurred in 1971 and 1972. Forty years later, plaintiff filed her lawsuit against defendant under a number of legal theories which were reduced to two:
1. The temple was vicariously liable for the actions of its employee per the doctrine of respondeat superior;
2. The temple violated its duty of care to her as a student;
Although these claims would normally be barred under a four-year statute of limitations, the Plaintiff asserted the traumatic nature of the abuse resulted in her suffering repressed memory syndrome. She had no memory of the abuse until 2009, and her complaint was filed in 2013 – within four years of when the memories resurfaced. Defense moved for summary judgment on grounds the claim was barred by the statute of limitations. Trial court granted the motion and plaintiff appealed. The appeals court stated it had no choice but to agree with the lower court. The Third District Court of Appeal took the position that the plain reading of the statute tolled the time limitations of four (4) years until the victim discovered the injury and the causal relationship between the injury and the abuse. By the express language of the statute, however, this tolling is limited to “intentional torts, and Ms. Firestone’s theory of liability is not that the Temple committed an intentional tort, but that the Temple is either vicariously liable or the Temple breached its fiduciary duty. The court went on to say the intentional tort exception would not extend to the employer. See Cisko v. Diocese of Steubenville, 123 So. 3d 83, 85 (Fla. 3d DCA 2013).
Read the opinion: http://caselaw.findlaw.com/fl-district-court-of-appeal/1723427.html